It's hard to understand the sentencing of Alexandre Bissonnette

National Post, 14 February 2019

Huot ruled that 'life 50' is unconstitutional, but 'life 40' is not. What about 'life 44' or 'life 47'? The jurisprudence on that fine calibration still awaits

The sentencing of Alexandre Bissonnette, who killed six men at a Quebec City mosque in 2017, is very hard to understand, other than as an expression of a judge doing what he prefers as opposed to what the law proscribes.

Bissonnette pled guilty. The sentence for murder in Canada is life imprisonment. The only difference is the period after which the prisoner might apply for parole; he neither has to apply, nor is it automatically granted. The period for first-degree murder is 25 years; for second-degree, 10 to 25 years depending on the circumstances.

If there are multiple life sentences, they must, by definition, run concurrently. Until 2011, the period of parole eligibility also ran concurrently, so that Bissonnette, guilty of six first-degree murders, would still have been eligible to apply for parole in 25 years. But in 2011, the Criminal Code was changed to give judges the option, in sentencing, of “stacking” the parole eligibility periods consecutively if warranted. The judge is not obliged to do so, but is able to hand down a sentence of life imprisonment without parole eligibility for 25, 50, 75 — or in this case, 150 years. For multiple counts of murder in the first degree, the blocks must be increments of 25.

Superior Court Justice François Huot handed down a sentence of life imprisonment with parole eligibility set at 40 years. The Criminal Code does not permit 25 + 15, but the judge rewrote that section to suit his purposes, which is brazen on the face of it.

The mosque massacre was a crime uniquely vile in its magnitude — six dead — and in its impact on the Muslim community and the city. It was also a grave sacrilege, as it took place in a house of worship, certainly an aggravating factor. The judge himself noted that it constituted a private attack upon religious liberty. I would have preferred to see the sentences stacked to reflect that.

In 2014, Justin Bourque was sentenced to life with 75 years before parole eligibility for the murder of three RCMP officers in New Brunswick. The Crown had asked for “life 75” and the defence for “life 50.”

Good thing Huot was not presiding. In the mosque case, he ruled that “life 50” was unconstitutional because it was “cruel and unusual” punishment. In New Brunswick the defence can ask for “life 50,” but next door in Quebec it is unconstitutional.

Huot ruled that “life 50” is unconstitutional, but “life 40” is not. What about “life 44” or “life 47”? The jurisprudence on that fine calibration still awaits.

Stackable life sentences are manifestly not “cruel and unusual.” Perhaps they are unusual, but then they apply only in the unusual occasion of mass murder. And they are invoked only when the circumstances are especially heinous — police officers, men in a house of God.

A life sentence is not inadmissibly cruel by our Criminal Code. It is applied routinely. There is even the “dangerous offender” designation, which is an indefinite sentence, which can practically mean life without eligibility for parole.

So the only question is whether parole eligibility periods in themselves can constitute an unconstitutional “cruel and unusual” punishment. The argument must be clear for the court to overturn the judgment of Parliament. And that “life 40” would be compliant with the charter while “life 50” would not is certainly not clear.